Exploiting resources that are the common heritage of mankind: how could African states benefit from the developing legal framework for deep sea mining?

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Abstract

This paper aims to unpack the potential of Part XI of the 1982 United Nations Convention on the Law Of the Sea (UNCLOS), that regulates international deep sea mining (DSM), to be used as an instrument for African economic advancement. After accounting for the possibilities and limitations of national mining, capacity building and sponsoring mining licenses respectively, the second part of this paper concludes that the present framework does not substantially benefit African states. It following problematises how ‘benefit sharing’ under the common heritage of mankind principle is used to all the same justify this hazardous industry, and to push the threshold for acceptable harm to the environment, however such harm will affect the least developed first. Following, attempting to ameliorate both the financial and environmental situation for the least developed in consequence of DSM, the last part of this paper proposes a new model for liability and benefit sharing. This model holistically considers liability regulations together with the proposed liability ‘Fund’ and the financial mechanism for redistribution. Revenue earmarked for redistribution will otherwise to great part be redirected to the Fund to fill gaps in liability.
This paper for all demonstrates how the present, much lacking ‘equitable’ liability model is flawed. Setting the standard for liability based on Nauru—the smallest (Pacific island) state in the world—does not benefit undeveloped states elsewhere. It enables access for the Pacific island states that are of particular interest to industry. Benefits for other non-industrialised states such as African will likely be via redistribution. This paper therefore proposes a residual liability model with exclusive positive discrimination of developing sponsoring states in Fund cover. Such cover will be premised on the state having fulfilled its due diligence obligation, however, a sponsored contractor cannot be subjected to pay in full. This model sets a comparatively highest standard of liability in DSM that assumed would create stronger incentives for state supervision. The difference is the relative deprivation of the opportunity for industrialised states who do not effectively control their contractors to socialise risk—via ‘equitable’ fund-dumping—whilst reaping the rewards. This financially restrictive model would further hinder the institutionalisation of new exploitation damage to pay for the previous. In conclusion, a win-win for the environment and developing states alike.
Original languageEnglish
Title of host publicationAfrican Society for International Law, Seventh Annual Conference
Number of pages27
Publication statusAccepted/In press - 1 Sept 2018

Keywords

  • deep sea mining
  • common heritage of mankind
  • the enterprise
  • polymetallic nodules

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